Key Affairs to have for 2021

The new year represents a great opportunity to take control of your current financial position and ensure that you remain secure should the coming year present unforeseen circumstances. If it has been some time since you last updated your will or contemplated asset protection, then you should take some time now to sort through your affairs and make sure everything is in order. Beyond protecting yourself both financially and legally, keeping your affairs up to date will also help protect your loved ones should anything happen to you. This is not a simple process, so we at Le Brun have compiled some questions to help guide you. If you find that your current state of affairs is unsatisfactory, you can contact us to speak to a lawyer today.

Are my assets protected should my circumstances change?

Although you may feel your current financial position is stable, you can never discount the possibility that your circumstances, whether personal or professional, may change. Should your creditors begin making claims against you, your assets could be taken. Assets liable to be claimed by trustees are:

• Vehicles, including your primary transportation should it exceed a set amount
• Properties you own, including your home
• Tools of trade should they exceed a set amount
• Cash or money in your bank account, although enough must be left to cover modest living expenses

When financial planning, you should always implement asset protection strategies to limit your creditors’ access to your most valuable assets. Seeking professional legal advice is a worthwhile exercise to keep your assets protected as a lawyer can help put in place trust and tax structures that can keep your assets secure.

If you have not implemented appropriate asset protection and creditors are beginning to make claims against you, it is vital that you seek advice from a lawyer who can keep you informed of your rights during debt collection and enforcement proceedings. Having a lawyer by your side will help minimise the loss of both business and personal assets while ensuring you have the right strategies and plans to address your concerns.

Is my Will up to date?

Many things can change over the course of a year, if you have experienced a significant change in your wealth, assets, or relationships, you need to make sure these changes are accounted for in your Will. If you have experienced one of the following life events since producing your previous Will, you need to update it:

• If you have married or divorced
• Bought or sold a property or business
• Had a child
• Significantly increased or decreased your assets

Your Will also must be officially updated if you have decided to appoint another executor to manage your estate, who your beneficiaries are, or who you are entrusting the guardianship of your children to. Although you may have come to an understanding amongst your inner circle, unless you make the necessary changes to your Will, your Will can be exposed to a challenge.

If you do not amend your Will after experiencing a significant change in your assets or relationships, then there may be important terms in your Will which you have missed and should be included in your Will. When there is something unaccounted for in you Will, the rules of intestacy will apply, meaning any assets not included in your Will would be distributed according to the law and not according to your wishes.

Amending a Will is not a simple task and if proper terms and correct procedures are not followed, a Will can be more easily challenged and invalidated. As well as preventing your final wishes from being carried out, an invalid Will can also further complicate an already emotionally fragile time for those impacted by your death and leave your loved ones vulnerable.

Seeking legal advice when updating your Will is a wise choice as a lawyer can help you avoid issues that could lead to challenges once you have passed away. A lawyer can also help you prepare related documents, such as Power of Attorney for Financial, Medical and Guardianship matters.

Drafting a Will when in a second marriage – I have stepchildren, what do I need to account for?

If you have entered into a second marriage, you will need to amend your Will to take into account this significant change in your life. When children and stepchildren are involved, this process can take on another level of difficulty, and it is important you discuss with your new partner how you wish to distribute your shared assets after you have passed.

Although adopted children and biological children you have outside of your marriage will automatically be included as beneficiaries if you leave you assets to “my children”, you will need to specifically outline whether you wish to include your stepchildren. Once you have decided to either include or exclude your stepchildren from your Will, you will need to take into consideration a number of scenarios, including:

• How will assets shared by you and your partner be distributed?
• If you make your children sole beneficiaries, how will you ensure your partner is protected should you pass away first?
• If your partner is the primary beneficiary of your Will and you pass away first, how will you ensure your children get a share in your remaining assets once your partner passes?

These are complex scenarios that will require you to set up trusts or keep your assets separate to those of your partner in order to reach your desired outcome. Given the complexity of these scenarios and solutions, it is highly recommended that you consult a lawyer when drafting your Will, as a lawyer can help you sought through the numerous considerations that must be made.

At Le Brun & Associates, our dedicated team of lawyers can help you get your affairs in order, giving you peace of mind and keeping you secure should your circumstances change. We provide sound and knowledgeable advice with the highest level of service to ensure you are protected. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Asset Protection Strategies

Once you have accumulated assets, it is important to begin putting in place the appropriate structures to protect them. Although this may seem unnecessary if you are in a secure financial position, you must remember that your circumstances may change and losing assets through litigation can happen if they are not properly protected. If your assets are all owned in your personal name, then you may be particularly vulnerable to asset loss.

If you are being pursued by creditors, assets you are liable to lose include:

• Any property you own, including your primary place of residence
• Any vehicles you own, including your primary source of transportation if its value exceeds $8,100
• Your tools of trade if their value exceeds $3,800
• Money, both physical cash and the amount you have in your bank account

Both your personal and business assets can be lost if you have not taken the necessary steps to protect them. This is why asset protection is a vital part of financial planning. To ensure you have the most appropriate measures in place, you should contact a lawyer to assist you. A Lawyer will be able to assist you in setting up the following protections for your assets.

Trusts & Business Structures

For asset protection during your lifetime, you should be looking into trusts and company structures. With the correct trust, tax and business structures you can minimise asset loss and ensure remain secure in your lifestyle.

Trusts are a popular method of asset protection as they transfer ownership of your assets to a trustee, who holds the assets on behalf of the beneficiaries. As a beneficiary of a trust, you will not be the legal owner of your assets, therefore creditors will not be able to take them from you.

Setting up a trust is not a simple solution that will always benefit you, there are many kinds of trusts which all entail different advantages and disadvantages. The different types of trusts you can use for asset protection include:

• Family Trusts
• Testamentary Trusts
• Business Trusts

When establishing a trust, you must consider which type of trust is most suitable for you and how your trust may affect your taxes. You need to consult a lawyer before establishing a trust so that you can benefit from informed advice regarding the type of trust you should place your assets in.

Beyond trusts, you can further protect your business assets by ensuring your business is structured in the way most beneficial for you. The four most common business structures in Australia are:

• Sole Trader – This structure will give you full control of your business
• Company – This structure will limit your liability by making your business a separate legal entity
• Partnership – This structure will divide income and losses between multiple owners
• Trust – This structure will make a trustee responsible for business operations

You can protect your assets by structuring your business as either a company or a trust, as these structures will limit your liability. You can change your business structure at any point over the lifetime of your business, but you should consult a lawyer before undergoing any major changes to ensure the new structure will protect your assets. A lawyer will also be able to assist with the changes to your taxes that may occur as a result of changing your business structure.

Estate Planning

To protect your assets at the end of your life, you must begin estate planning. Planning your estate involves more than writing your Will, as you must also consider what will happen if you have diminished capacity and require full-time care. When estate planning, your main objective should be to ensure control of your assets gets passed to the people of your choice in a timely manner with minimal tax repercussions.

The first step in developing a complete estate plan is to create a Will and ensure it remains up to date over the course of your life. Once you have a Will, you must also consider:

• Superannuation – Your super will not be immediately paid to your estate unless payment to your estate is specified in the agreement you have with your super fund. To control where your super goes, you must have a Binding Death Benefit nomination.
• Life Insurance – If you have a life insurance policy outside of your super fund, you will generally be able to nominate who will receive the payout once you have died. In cases where you have not nominated a beneficiary your policy will be paid to you estate, in which case there will be a legal requirement to provide Probate or Letters of Administration.
• Tax Consequences – Depending on how your beneficiaries receive your assets, they may be required to pay tax on them. There are multiple strategies you can employ to limit the tax impacts faced by your beneficiary; a lawyer will be able to help you implement them.
• Power of Attorney – You can nominate someone to carry out tasks on your behalf if you ever lose the capacity to handle your affairs. You can also nominate a Power of Guardianship, which will allow someone to make choices regarding your health and lifestyle. When nominating people to these roles, you must ensure you trust them as they may end up with significant control over your life and affairs.

With a robust estate plan in place, you will be able to protect your assets beyond the end of your life and make sure your beneficiaries receive what you wish to give them.

Changes in Spousal Relationships

For couples entering into a marriage, the thought of how assets will be divided in a future separation may not have occurred. However, if you wish to secure the assets you have accumulated prior to the marriage, you must put protections in place to ensure you keep them in case of divorce. A family lawyer will be able to assist you by preparing a Binding Financial Agreement (more commonly referred to as a Pre-Nuptial Agreement). These agreements will address how to divide assets after a separation and will remove the Family Court from the decision-making process. Similar agreements about the division of assets can be entered into at any time during a relationship.

If you are experiencing a marriage breakdown but do not have a Binding Financial Agreement, the decisions around who keeps which assets could be made by the Family Court under the provisions of the Family Law Act. Despite the common belief that divorces will lead to an equal split in the assets between partners, there is no set formula followed by the court when dividing assets and partners rarely receive exactly half of all assets. Considerations made by the court whilst dividing assets include, but are not limited to:

• Assets and liabilities of both parties
• Assets owned by each partner prior to the marriage
• Financial contributions made by each partner toward assets, e.g. renovations to properties
• Length of the relationship
• Whether there are children involved and who the primary caregiver is
• The age, health and income of both parties

To ensure you get your fair share in a divorce, you need to contact a divorce lawyer. A lawyer will keep you informed of your rights and represent your best interests, having a lawyer will give you the greatest chance of protecting your assets.

At Le Brun & Associates, our dedicated team of lawyers can assist you in setting up trusts and correct tax structures so your assets are protected if you circumstances change. We can provide advice and legal assistance to keep you secure. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Purchasing a Property or Land? 5 Reasons Why you need a Lawyer on Standby

Our professional property and litigation lawyers will help you every step of the way with your land, first home or investment property purchase to achieve the best possible outcome. 

Purchasing a home or area of land is a major investment at any stage in life. While it’s an exciting process, it can be equally daunting, especially if you’re a first-time buyer. In theory it might appear straightforward to purchase a property, but in practice there’s a lot of work involved and several instances where matters can become complicated. For example, understanding legal jargon outlined in your contract or assessing your specific tax requirements.

Having an experienced lawyer by your side gives you:

• total transparency of your contracts;
• confidence in decision making; and
• peace of mind.

An expert solicitor assures you’re covered throughout all unexpected areas of the property purchasing process. They can alert you to any concerns along the way and certify that everything is carried out correctly and legally to protect your best interest and make your investment worthwhile.

Here are 5 Reasons why having a property lawyer on standby is essential and how they can help you through every stage of the purchasing process:

1. Providing Advice on Property Inspections

There can be several areas of concern to look out for when inspecting a property, from internal damage such as mould to contaminated land surrounding the estate. These types of issues are not only costly to handle if you’ve already signed a contract, but they are an extreme health hazard and can have long term negative effects on your wellbeing. An experienced solicitor can give you advice about site inspections and help you arrange for searches and certificates to determine the condition of the property in question. Once the documents and certifications regarding the property are obtained, a lawyer can then review them with you so you can make a fully informed decision before committing.

2. Arranging & Reviewing Official Documents

There are several terms and conditions to understand when signing a contract for a property or land. Contracts can be particularly confusing when legal terminology is used which can be time consuming and stressful to interpret on your own. A solicitor not only arranges all your contracts to ensure everything is covered but with their expertise they know how to check for the right inclusions and exclusions as well as how to identify any unfair clauses. For example, real estate agents are not obliged to tell you about construction sites or developments in your area such as apartment blocks, skyscrapers, or power lines. This information can also be difficult to get hold of from your local council, but a lawyer can provide a comprehensive contract review to ensure there are no unexpected surprises down the road.

3. Preparing Financial Advice & the Deposit

Whether you’re a first home buyer or seasoned investor, a house or land is usually one of the biggest purchases you’ll ever make so you need to feel financially confident. There are several financial factors to consider from stamp duty, GST and capital gains tax (if you’re also selling your current house in exchange for a new one). A lawyer can help you calculate any taxes, so you’re not blindsided by any upcoming costs. Additionally, they can help you with your deposit by placing it into a trust account to ensure it’s ready prior to settlement.

4. Working with all Statutory Authorities Between Settlement

Before a final settlement comes into play, which can take between 4 weeks to 4 months for your desired property, a lawyer will continue to conduct enquiries on your behalf. They will work with all statutory bodies including the local council and water authority to check whether rates have been paid up to date. They’ll also prepare a transfer certification of the property from the Office of State Revenue before you need to settle. A lawyer can also work with your financial provider if necessary, to make sure all aspects of your finances are ready to take place on your appointed settlement date.

5. Settling the Property

A lawyer will help you finalise everything from start to finish, from an initial contract review, final inspection disputes, as well as being by your side to settle the property on the nominated day. Their presence throughout the entire process is to make sure nothing is overlooked to guarantee the best deal moving forward. Settlement involves liaising and working with the current owner’s lawyer, your banking institution and local government agencies, such as, the Titles Office and council, to transfer the ownership title of the property. A qualified lawyer can also ensure that mortgage security is released from any lenders, remove any caveats and any other obstructions that might interfere with the final settlement.

At Le Brun & Associates, our dedicated team of Property & Litigation Lawyers can help you purchase a property or area of land with complete confidence. We provide sound and knowledgeable advice with the highest level of service to ensure that you get the best possible outcome from your investment. Contact us today for your FREE 30-minute consultation.